Judicial review is the process by which a claimant challenges a state action made by a court or other government actor in court. In Ontario, judicial review is governed by the Judicial Review Procedure ActLRO 1990, cJ1 (the JRPA).
Under the JRPA, a plaintiff can apply for judicial review to ask the court to:
- annul the administrative decision (certiorari);
- prohibit the decision-maker from taking any further action (prohibition); and or
- compel the decision-maker to do something under its applicable law(mandamus).
Below is a list of some of the most important factors a plaintiff should consider when deciding whether to seek judicial review in the Ontario Divisional Court.
1. Will the matter be referred to court?
The success of judicial review can be a mixed blessing.
The reversal of a decision by the Divisional Court generally means that the case will be returned to the court or to the decision-maker for reconsideration, in accordance with the decision of the Divisional Court.
In the 2019 Supreme Court of Canada decision, Canada (Minister of Citizenship and Immigration) v. Vavilov2019 SCC 65, the majority held that where the court finds an administrative decision to be unreasonable, it “will most often be appropriate to refer the matter back to the decision maker for reconsideration, this time with the benefit of the court grounds.
“There are ‘limited scenarios’ in which it would be inappropriate to return a case to the original decision maker. This includes cases where it becomes apparent to the court that dismissal of the case “would not help”.
The court will consider factors such as:
- fairness to the parties;
- the urgency of finding a solution to the dispute;
- the nature of the special plan;
- whether the decision-maker had a real opportunity to speak out on the issues;
- party fees; and
- efficient use of public resources.
2. Will the administrative decision be reversed?
Most administrative decisions are reviewed through a “substantive review”.
This means that the court will analyze the merits of the decision and either defer to it, applying what is called a “reasonableness review”, or show little deference to the decision, applying what is called a “correctness review”.
”Vavilov creates a presumption of reasonableness in all cases.
That being said, the presumption of reasonableness control can be rebutted when:
- the legislature has indicated that it intends to apply a different standard of review, i.e. a statute expressly prescribes the standard of review, that there is a statutory right to appeal from the decision or the case raises a question of law such as statutory interpretation or the scope of the decision-maker’s authority; Where
- the rule of law requires that the less deferential standard of “correctness” apply, i.e. because certain legal questions, such as constitutional questions, are at issue, or because there are general questions of law of central importance to the legal system as a whole. Courts may also apply correctness review when two or more courts have assumed jurisdiction over a case, creating an “operational conflict” between the two bodies.
Another ground for court intervention relates to breaches of procedural fairness. This includes situations where the decision maker may have violated fundamental principles of due process and natural justice, such as when the claimant’s right to be heard, to be informed of the reasons for the decision or the right to a impartial tribunal have been compromised: see generally, Baker c. Canada (Minister of Citizenship and Immigration),  2 SCR 817.
3. Is there a right of appeal?
If applicable law requires that the administrative decision at issue be appealed to a court, judicial review as a discretionary remedy under the JRPA is not available.
The appellant is required to challenge the decision through the appeal mechanism provided by law.
In such cases, the ordinary appellate review standards of “palpable and overriding error” and “accuracy” apply: Vavilovcited above, citing Housen vs Nikolaisen2002 SCC 33.
A party who ignores the avenue of appeal and pursues an application for judicial review risks having the judicial review quashed on a preliminary motion.
4. Is new evidence needed?
In the interests of fairness, applications for judicial review are almost always decided on the basis of the record as it existed at the court level.
Section 10 of the Ontario Act Judicial Review Procedure Act requires the court to submit the record of its proceedings to the Divisional Court “without delay” upon commencement of an application for judicial review.
The content of the court case file is defined in paragraph 20 of the Statutory Powers Exercise Act.
There is a general prohibition against introducing “new evidence” in an application for judicial review. However, there are “rare exceptions” where new evidence may be admissible to: establish general context to assist the court; demonstrate procedural defects that are not apparent from the record of the reasons for the decision; and demonstrate the complete absence of evidence to support a material finding of fact.
The claimant must also demonstrate that the new evidence should have been placed on the record of the proceeding and that the documents properly constitute “new evidence” on the claim: see, for example, Lovell c. Ontario (Minister of Natural Resources and Forestry)2022 ONSC 423.
5. Is the application for judicial review late?
Section 5(1) of the Judicial Review Procedure Act requires that an application for judicial review be made within 30 days of the contested decision.
A plaintiff who fails to meet this deadline will have to convince the Divisional Court, under ss. 5(2), that the time for making the claim should be extended because there are “apparent grounds for relief” and “no prejudice or substantial prejudice will result to any person affected” by the delay.
The above considerations demonstrate that applications for judicial review are largely creatures in their own right. Lawyers or clients unfamiliar with the mechanics and substance of judicial review should exercise caution.
This article was first published in The lawyer’s daily life